B.1 Software patents

The U.S. Patent and Trademark Office has granted numerous software
patents on software techniques. Patents are an absolute
monopoly--independent reinvention is precluded. This monopoly lasts
for seventeen years, i.e., forever (with respect to computer science).

One patent relevant to TeX is patent 4,956,809, issued to the Mark
Williams company on September 11, 1990, applied for in 1982, which
covers (among other things)

representing in a standardized order
consisting of a standard binary structure file stored on auxiliary
memory or transported on a communications means, said standardized
order being different from a different order used on at least one
of the different computers;

Converting in each of the different computers binary data read from an
auxiliary data storage or communications means from the standardized
order to the natural order of the respective host computer after said
binary data are read from said auxiliary data storage or
communications means and before said binary data are used by the
respective host computer; and

Converting in each of the different computers binary data written into
auxiliary data storage or communications means from the natural order
of the respective host computer to the standardized order prior to
said writing.

... in other words, storing data on disk in
a machine-independent order, as the DVI, TFM, GF, and PK file formats
specify. Even though TeX is "prior art" in this respect, the
patent was granted (the patent examiners not being computer scientists,
even less computer typographers). Since there is a strong presumption
in the courts of a patent's validity once it has been granted, there is
a good chance that users or implementors of TeX could be successfully
sued on the issue.

As another example, the X window system, which was intended to be able
to be used freely by everyone, is now being threatened by two patents:
4,197,590 on the use of exclusive-or to redraw cursors, held by Cadtrak,
a litigation company (this has been upheld twice in court); and
4,555,775, held by AT&T, on the use of backing store to redraw windows
quickly.

Here is one excerpt from a recent mailing by the League for Programming
Freedom (see section B.3 What to do?) which I feel sums up the situation rather
well. It comes from an article in Think magazine, issue #5,
1990. The comments after the quote were written by Richard Stallman.

"You get value from patents in two ways," says Roger Smith, IBM
Assistant General Counsel, intellectual property law. "Through fees,
and through licensing negotiations that give IBM access to other
patents.

"The IBM patent portfolio gains us the freedom to do what we need to
do through cross-licensing--it gives us access to the inventions of
others that are the key to rapid innovation. Access is far more
valuable to IBM than the fees it receives from its 9,000 active
patents. There's no direct calculation of this value, but it's many
times larger than the fee income, perhaps an order of magnitude
larger."

This information should dispel the belief that the patent system will
"protect" a small software developer from competition from IBM. IBM
can always find patents in its collection which the small developer is
infringing, and thus obtain a cross-license.

However, the patent system does cause trouble for the smaller
companies which, like IBM, need access to patented techniques in order
to do useful work in software. Unlike IBM, the smaller companies do
not have 9,000 patents and cannot usually get a cross-license. No
matter how hard they try, they cannot have enough patents to do this.

Only the elimination of patents from the software field can enable
most software developers to continue with their work.

The value IBM gets from cross-licensing is a measure of the amount of
harm that the patent system would do to IBM if IBM could not avoid it.
IBM's estimate is that the trouble could easily be ten times the good
one can expect from one's own patents--even for a company with 9,000
of them.